E-discovery best practices for your practice, Step 6: Evidence

You’re getting close to the finish line. You are preparing your evidence and have identified, preserved and reviewed your electronically stored information (ESI). You’ve even cooperated with your opposing counsel — at least until now. Your task now is to determine how to admit your ESI into evidence. In this phase, the most important key for successfully admitting ESI is your own preparation.

When considering evidentiary issues, it is important to know the purpose for which you are introducing the evidence and to know your audience. Whether you are submitting evidence into the record for summary judgment, using ESI as an exhibit during a deposition, or introducing evidence at trial, it is important to approach all situations with a general knowledge of some of the challenges you might face that are unique to ESI.

Whether dealing with ESI or not, when preparing your evidence, you must start with the Rules of Evidence:

…that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.

Essentially, contemplating evidentiary challenges is nothing new when considering the admissibility of evidence. However, ESI may pose unique challenges that you have not needed to consider before. Specifically:

Determining the owner/creator of ESI

Understanding the limits of technology in authentication

Analyzing threats to the integrity of ESI

Dealing with the sheer volume of ESI

Identifying the custodian and qualifying the custodian for testimony

Because you have worked through the e-discovery best practices model and were involved with the collection and preservation, you should be prepared to answer the above questions. Keep in mind that authenticating your ESI will likely involve proving the defensibility of the collection. Additionally, make sure you documented each step of the process and have chains of custody to track the evidence collected and preserved.

Electronically stored information has its own unique traits that can complicate matters even more. So, when faced with introducing ESI into evidence, a good reference is the Sedona Conference commentary on ESI Evidence and Admissibility. This commentary offers useful practice tips that sum up the phases of the e-discovery best practices model and focuses on the themes this article series has stressed over and over again:

Be prepared. Start with a defensible and comprehensive records management program.

Think strategically about the case and the evidence from the beginning of the case.

Memorialize each step of the collection and production process to bolster reliability.

Use every opportunity during discovery to authenticate potential evidence. Examples:

For pretrial disclosures under F.R.C.P. 26(a), you have 14 days to file objections or possible waiver;

Documents produced by opposing party are presumed to be authentic – burden shifts;

F.R.C.P. 36 Requests for Admissions;

Request stipulation of authenticity from opposing counsel.

Be prepared to provide the court with enough information to understand the technology issues as they relate to the reliability of the evidence at hand.

Be creative and consider whether there are case management tools that might assist the court and the other parties in addressing evidentiary problems concerning some of the more complex issues (such as “dynamic” data in database or what is a “true and accurate copy” of ESI); and,

Keep your audience in mind…will this be an issue for the judge or the jury? (e.g., Rule 104(a) or (b)).

Like many of the e-discovery challenges we have discussed in this series, no evidentiary challenge is insurmountable. In fact, most evidentiary issues can be resolved through communication and cooperation with counsel. Through agreements and stipulations on authenticity, you can then focus on the merits of the case rather than waste time on unwarranted evidentiary objections. Likewise, the sooner you can discuss these issues with counsel the better.

Contributing Author

Kate Mortensen

Kate Burke Mortensen is a senior discovery consultant with Xact Data Discovery. A former practicing attorney, she has 12 years of litigation experience representing individuals...